Decision

Validity Decision

Updated 11 December 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1338(2023)

5 December 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

DETERMINATION OF THE BARGAINING UNIT

The Parties:

NUJ

and

Business Insider Europe Limited

1. Background

1)         The NUJ (the Union) submitted an application to the CAC on 15 June 2023 that it should be recognised for collective bargaining by Business Insider Europe Limited (the Employer) for a bargaining unit comprising the “Editorial, Social and Video staff”. The location of the proposed bargaining unit was 10 East Road, London, N1 6AD. The CAC gave both parties notice of receipt of the application on 15 June 2023.  The Employer submitted a response to the CAC dated 22 June 2023 which was copied to the Union.

2)         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case.  The Panel consisted of Mr Rohan Pirani, Panel Chair, and, as Members, Mr Martin Kirke and Ms Anna Berry.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         By a decision dated 6 July 2023 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit.

2. Hearing

4)         A hearing was held on 11 October 2023 in London and both parties provided written submissions prior to the hearing together with supporting documentation. The Panel’s decision was that the appropriate bargaining unit was the Editorial, Social and Video staff but excluding the positions of: Deputy Editor, Deputy Executive Editor Senior Managing Producer, Deputy Executive Producer, Senior Managing Producer, Fellows, Supervising Producer, Managing Producer, Editor and Senior Editor.

5)         As the bargaining unit determined by the Panel differed from the Union’s proposed bargaining unit by the exclusion of senior roles, the Panel was required by paragraph 20 of the Schedule to decide whether the Union’s application was valid in accordance with the tests stipulated in paragraphs 43 to 50.  The parties were invited, by a letter from the Case Manager dated 31 October 2023, to submit written evidence relating to those tests. The Union’s response was received on 6 October 2023, and the Employer’s response on 3 October 2023.

3. The Union’s comments on the validity tests

6)         In its response dated 6 November 2023, the Union stated that as far as it was aware there was no recognition agreement covering any of the workers in the new bargaining unit. In reply to the question if there was 10% union membership within the new bargaining unit, the Union stated there was well over 10% union membership amongst those performing the roles in the new bargaining unit stating that the figure was over 50%.

7)         In response to the question whether the majority of the workers in the new bargaining unit were likely to favour recognition, the Union stated yes, and that this assertion was made on the basis that there was a union density of 76% in the new bargaining unit. The Union confirmed it had evidence of this density, and if required and requested by the CAC, the Union would provide in more detail this evidence, in order to assist the CAC in their deliberations on recognition.

8)         Finally, the Union stated it was unaware of any existing or previous competing application, from another union, covering any workers in the bargaining unit.

4. The Employer’s comments on the validity tests

9)         In its response dated 3 November 2023 the Employer stated that, based on its knowledge and taking into account the validity tests referenced in the CAC’s letter, it did not contest that this was a valid bargaining unit.

10)       The Employer stated that there was no existing recognition agreement covering any of the workers within the new bargaining unit. The Employer accepted that, based on the membership check undertaken by the CAC on 30 June 2023 in respect of the original bargaining unit proposed by the Union, it would satisfy the requirement of 10% union membership.

11)       Finally, the Employer stated it was unaware of any existing or previous competing application, from another union, covering any workers in the bargaining unit.

5. The membership and support check

12)       To assist in the determination of two of the validity tests specified in the Schedule, namely, whether 10% of the workers in the determined bargaining unit are members of the Union (paragraph 45(a)) and whether a majority of the workers in the determined bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership and support for recognition within the determined bargaining unit. The Union provided a list of its members in the determined bargaining unit and this was received by the CAC on 8 November 2023. The Employer provided a list of workers in the determined bargaining unit on 9 November 2023. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 6 November 2023.  The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

13)       The list supplied by the Employer indicated that there were 41 workers in the new bargaining unit. The list of members supplied by the Union contained 30 names. According to the Case Manager’s report, the number of union members in the determined bargaining unit was 30, a membership level of 73.17%.

14)       A report of the result of the membership check was circulated to the Panel and the parties on 9 November 2023 and the parties were invited to comment on the result.

6. Parties’ comments on the membership check

15)       In its response dated 9 November 2023, the Union stated “Thank you for your notification and supplying the analysis which we at the NUJ concur with, in terms of analysis of density. Given the figure for density, we would ask the panel to now consider moving to recognition without the requirement of a ballot. We appreciate this is within the panel’s jurisdiction and merely ask for appropriate consideration to be made”.

16)       The Employer did not submit any comments on the results of the membership report by the deadline imposed.

7. Section 264(2) of the Act – Interpretation of Committee decisions

17)       In its covering email that was sent at the time it submitted its list of names etc. for the purpose of the membership and support check the Employer raised a question as to whether the roles of Executive Editor, Copy Chief and Content Strategy Director, which were omitted in error from the correspondence submitted by both the Employer and the Union and which was considered by the CAC at the hearing on 11 October 2023, should also be excluded from the bargaining unit on the basis that they were also senior roles within the business.

18)       The Union, having had sight of the Employer’s email dated 12 November 2023 requested the CAC, pursuant to its power under section 264, to interpret its decision as to whether the roles of Executive Editor, Copy Chief and Content Strategy Director which were not referred to during the course of the bargaining unit hearing should also be specially excluded from the determined bargaining unit in the same way that the determined bargaining unit specifically excluded the other senior roles that were identified during the course of the hearing.

19)       Under section 264(2) the CAC can decide a question of interpretation after hearing the parties, or if the parties’ consent, without a hearing.   By emails dated 23 November 2023 both parties confirmed that they were content for the Panel to deal with the matter without a hearing and the Panel proceeded accordingly.

20)       As a question had arisen as to the interpretation of the Panel’s decision dated 31 October 2023 on the bargaining unit, pursuant to section 264(2) of the Act, the Panel, in a decision dated 28 November 2023, decided that the following roles should be also specifically excluded: Executive Editor, Copy Chief and Content Strategy Director Editorial.  The appropriate bargaining unit was therefore the Editorial, Social and Video staff but excluding the positions of: Executive Editor, Copy Chief, Content Strategy Director, Deputy Editor, Deputy Executive Editor Senior Managing Producer, Deputy Executive Producer, Senior Managing Producer, Fellows, Supervising Producer, Managing Producer, Editor and Senior Editor.

21)       In a letter dated 28 November 2023 that accompanied the decision under section 264 the parties were informed that the Panel would continue in its assessment as to whether the application was valid in accordance with the tests set out in paragraphs 43 to 50 of the Schedule.  The Panel informed the parties that it would proceed with its assessment on the basis that, as the roles belatedly excluded from the determined bargaining unit were not included in the list provided by the Employer for the Case Manager’s check, the figures in the Case Manager’s report were therefore unaffected by the section 264 decision.

8. Discussion and conclusions

22)       The Panel must decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered the parties’ submissions and the other evidence before it. The following matters are not disputed:

• there is no existing recognition agreement covering any of the workers within the determined bargaining unit;

• there is no competing application from another union; and

• there has been no previous application in respect of the determined bargaining unit.

23)       The remaining issues for the Panel to decide are whether the validity criteria contained in paragraphs 45(a) and (b) are met.

Paragraph 45(a)

24)       Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the unions constitute at least 10% of the workers in the determined bargaining unit.  The membership check conducted by the Case Manager outlined above showed that 73.17% of the workers in the determined bargaining unit were members of the Union. As previously stated, the Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel has therefore decided that members of the Union constitute at least 10% of the workers in the bargaining unit as required by paragraph 45(a) of the Schedule.

Paragraph 45(b)

25)       Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the determined bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

26)       As stated above, the result of the membership check showed a membership level of 73.17% and this figure was not challenged by the Employer.  When asked about this test prior to the check being undertaken the Employer stated that it was not in a position to comment based on the information that was available. The Employer was then invited to comment on the findings of the check undertaken by the Case Manager but chose not to do so.

27)       In assessing whether it is likely that a majority of the workers in the determined bargaining unit would be likely to support recognition of the Union, the Panel believes that, in the absence of any evidence to the contrary, trade union membership can be taken as a legitimate indicator of likely support for recognition for collective bargaining purposes.  In this case, just short of three quarters of the workers in the bargaining unit are members of the Union and with such a strong demonstration of support via membership, the Panel is therefore of the view that this test is met.  

9. Decision

28)       For the reasons given above the Panel’s decision is that the application is valid for the purposes of paragraph 20 of the Schedule, and the CAC must proceed with the application.

Panel

Mr Rohan Pirani, Panel Chair

Mr Martin Kirke

Ms Anna Berry

5 December 2023